January 10, 2012

Swedish citizens would not want their government to mess around in their underwear. You would assume all hell would break loose if the government would tell them: you won’t get a new passport or other identification document unless you have become irreversibly infertile.

This is, how absurd it may seem, the reality for those Swedish citizens who are transgender.

Swedish transgender people who want to have their preferred gender recognized before the law, need to prove they are unable to procreate (Lagen om faststallelse av konstillhorighet i vissa fall (SFS 1972; 119)).

The Swedish law causes anguish for transgender people who choose not to have the required surgery, maybe out of a wish to one day become parents. Their identification documents do not match their gender identity and gender expression. This leads to frequent public humiliation, vulnerability to discrimination, and great difficulty finding or holding a job. There are many occasions where you need to show your identification document. Often transgender people are called to explain how it is possible that their official document (with male or female on it) does not match their appearance. It is not difficult to imagine what it feels like when you are waiting in line in the post office and the clerk demands an explanation: “But here it says you are a man, while I am looking at a woman. How is this possible?”

The Swedish transgender law stems from 1972 and is out of step with current international best practice and understandings of Swedish obligations under international human rights law.

In July 2009 Thomas Hammarberg, the commissioner for human rights of the Council of Europe, made the observation about the forced sterilization requirement that in reality the state prescribes medical treatment for legal purposes, “a requirement which clearly runs against principles of human rights and human dignity.” This was followed up in the extensive report on human rights for LGBT people in Europe that the commissioner published this summer. The commissioner there recommends Council of Europe's member states to do away with all physical requirements for people who want to change their legal gender.

In March 2010 the Committee of Ministers of the Council of Europe recommended to member states, including Sweden, that requirements, including changes of a physical nature, for legal recognition of a gender reassignment, should be reviewed in order to remove abusive elements. The Committee recommended that member states should take appropriate measures “to guarantee the full recognition of a person’s gender reassignment in all areas of life, in particular by making possible the change of name and gender in official documents in a quick, transparent and accessible way.”

Several European countries like Portugal, the United Kingdom and Spain have already done away with the requirement of forced sterilization. Unfortunately this is not the case yet in all European countries, a part of the world that usually praises itself highly regarding respecting human rights. The Netherlands is another European country with a law similar to the Swedish one. In September 2011 Human Rights Watch published an 85-page report, “Controlling Bodies, Denying Identities: Human Rights Violations Against Trans People in the Netherlands” which advocated legal reform. The law should be amended to respect transgender people’s human rights by separating medical and legal questions for transgender people. Legal recognition of their gender identity should not be made conditional on any form of medical intervention, was the central thesis in the report. The Dutch government publicly acknowledged that its transgender law violates international human rights law and published a law proposal which does away with the forced sterilization requirement.

The Swedish government should follow the example of the group of enlightened countries. In revising the law, Sweden could be guided by the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity. The Yogyakarta Principles encourage states to consider measures that allow all people to define their own gender identity.

On May 30, 2011, the Swedish National Board of Health and Welfare presented its proposal for a revision of the law on legal gender recognition to the Minister of Social Affairs, Goran Hagglund. Among other requirements the forced sterilization clause should be taken out and the procedure should be simplified. The proposal will give transgender people residing in Sweden the right to change their legal gender without having to undergo medical or surgical procedures.

The proposal has strong support. Vänsterpartiet, Miljöpartiet, Socialdemokraterna, Folkpartiet, Centern och Moderaterna are all in favor of changing the law in accordance with the proposal. Then why is this not yet reality? I presume that is because the party of Minister Göran Hägglund, Kristdemokraterna, is against the removal of the forced sterilization requirement  and is calling the shots in the government.

Minister Hagglund has not yet submitted a law proposal to the Swedish Riksdagen along the lines of the Board’s proposal.  But the other parties in the government have not acted either. It seems that they have so far put the stability of the government before the respect of human rights of transgender people.

And thus transgender people in Sweden are still faced with a government’s knife which cuts in their healthy bodies before allowing them a new passport. This bloody law should be revised immediately. Every day counts.

 

Boris Dittrich is the advocacy director of the Lesbian, Gay, Bisexual and Transgender Program at Human Rights Watch.